The Court ruling came in the wake of applications
from seven human rights organizations calling for an end to the practice of
"shaking."
President A. Barak:
The General Security Service
(hereinafter, the "GSS") investigates
individuals suspected of committing crimes
against Israel’s security. Is the GSS
authorized to conduct these interrogations?
The interrogations are conducted on the basis
of directives regulating interrogation methods.
These directives equally authorize investigators
to apply physical means against those undergoing
interrogation (for instance, shaking the suspect
and the "Shabach" position). The
basis for permitting such methods is that
they are deemed immediately necessary for
saving human lives. Is the sanctioning of
these interrogation practices legal? - These
are the principal issues presented by the
applicants before us.
Background:
1. The State of Israel has
been engaged in an unceasing struggle for
both its very existence and security, from
the day of its founding. Terrorist organizations
have established as their goal Israel’s
annihilation. Terrorist acts and the general
disruption of order are their means of choice.
In employing such methods, these groups do
not distinguish between civilian and military
targets. They carry out terrorist attacks
in which scores are murdered in public areas,
public transportation, city squares and centers,
theaters and coffee shops. They do not distinguish
between men, women and children. They act
out of cruelty and without mercy (For an in
depth description of this phenomenon see the Report of the Commission of Inquiry Regarding
the GSS’ Interrogation Practices with
Respect to Hostile Terrorist Activities headed by (ret. ) Justice M. Landau, 1987
- hereinafter, "Commission of Inquiry
Report") published in the Landau
Book 269, 276 (Volume 1 , 1995).
The facts presented before
this Court reveal that one hundred and twenty
one people died in terrorist attacks between
1.1.96 to 14.5.98. Seven hundred and seven
people were injured. A large number of those
killed and injured were victims of harrowing
suicide bombings in the heart of Israel’s
cities. Many attacks-including suicide bombings,
attempts to detonate car bombs, kidnappings
of citizens and soldiers, attempts to highjack
buses, murders, the placing of explosives,
etc.- were prevented due to the measures taken
by the authorities responsible for fighting
the above described hostile terrorist activities
on a daily basis. The main body responsible
for fighting terrorism is the GSS.
In order to fulfill this
function, the GSS also investigates those
suspected of hostile terrorist activities.
The purpose of these interrogations is, among
others, to gather information regarding terrorists
and their organizing methods for the purpose
of thwarting and preventing them from carrying
out these terrorist attacks. In the context
of these interrogations, GSS investigators
also make use of physical means. The legality
of these practices is being examined before
this Court in these applications.
The Applications:
2. These applications are
entirely concerned with the GSS’ interrogation
methods. They outline several of these methods,
in detail, before us. Two of the applications
are of a public nature. One of these (H.C.
5100/94) is brought by the Public Committee
Against Torture in Israel. It submits that
GSS investigators are not authorized to investigate
those suspected of hostile terrorist activities.
Moreover, they claim that the GSS is not entitled
to employ those pressure methods approved
by the Commission of Inquiry’s Report ("the application of non-violent psychological
pressure" and the application of "a
moderate degree of physical pressure").
The second application (hereafter 4054/95),
is brought by the Association for Citizen’s
Rights in Israel (ACRI) . It argues that the
GSS should be instructed to refrain from shaking
suspects during interrogations.
Five of the remaining applications
involve specific applicants who turned to
the Court individually. They each petitioned
the Court to hold that the methods used against
them by the GSS are illegal. Who are these
applicants?
3. The applicants in H.C.
5188/96 (Wa’al Al Kaaqua and Ibrahim
Abd’alla Ganimat) were arrested at the
beginning of June 1996. They were interrogated
by GSS investigators. They appealed to this
Court (on 21-7-96) via the Center for the
Defence of the Individual, founded by Dr.
Lota Saltzberger. Their attorney petitioned
the Court for an order nisi prohibiting
the use of physical force against the applicants
during their interrogation. The Court granted
the order. The two applicants were released
from custody prior to the hearing. As per
their attorney’s request, we have elected
to continue hearing their case, in light of
the importance of the issues they raise in
principle.
4. The applicant in H.C.
6536/96 (Hat’m Abu Zayda), was arrested
(on 21-9-95) and interrogated by GSS investigators.
He turned to this Court (on 22-10-95) via
of the Center for the Defence of the Individual,
founded by Dr. Lota Saltzberger. His attorney
complained about the interrogation methods
allegedly used against his client (deprivation
of sleep, shaking, beatings, and use of the
"Shabach" position). We immediately
instructed the application be heard. The Court
was informed that the applicant’s interrogation
had ended (as of 19-10-95). The information
provided to us indicates that the applicant
in question was subsequently convicted of
activities in the military branch of the Hamas
terrorist organization. He was sentenced to
seventy four months in prison. The convicting
Court held that the applicant both recruited
and constructed the Hamas’ infrastructure,
for the purpose of kidnapping Israeli soldiers
and carrying out terrorist attacks against
security forces. It has been argued before
us that the information provided by the applicant
during the course of his interrogation led
to the thwarting of an actual plan to carry
out serious terrorist attacks, including the
kidnapping of soldiers.
5. The applicant in H.C.
7563/97 (Abd al Rahman Ismail Ganimat) was
arrested (on 13-11-97) and interrogated by
the GSS. He appealed to this Court (24-12-97)
via the Public Committee Against Torture in
Israel. He claimed to have been tortured by
his investigators (through use of the "Shabach"
position", excessive tightening of handcuffs
and sleep deprivation). His interrogation
revealed that he was involved in numerous
terrorist activities in the course of which
many Israeli citizens were killed. He was
instrumental in the kidnapping and murder
of IDF soldier (Sharon Edry, of blessed memory);
Additionally, he was involved in the bombing
of the Cafe "Appropo" in Tel Aviv,
in which three women were murdered and thirty
people were injured. He was charged with all
these crimes and convicted at trial. He was
sentenced to five consecutive life sentences
plus an additional twenty years of prison.
A powerful explosive device,
identical to the one detonated at Cafe "Appropo"
in Tel Aviv, was found in the applicant’s
village (Tzurif) subsequent to the dismantling
and interrogation of the terrorist cell to
which he belonged. Uncovering this explosive
device thwarted an attack similar to the one
at Cafe "Appropo". According to
GSS investigators, the applicant possessed
additional crucial information which he only
revealed as a result of their interrogation.
Revealing this information immediately was
essential to safeguarding state and regional
security and preventing danger to human life.
6. The applicant in H.C.
7628/97 (Fouad Awad Quran) was arrested (on
10-12-97) and interrogated. He turned to this
Court (on 25-12-97) via the Public Committee
against Torture in Israel. Before the Court,
he claimed that he was being deprived of sleep
and was being seated in the "Shabach"
position. The Court issued an order nisi and held an immediate hearing of the application.
During the hearing, the State informed the
Court that "at this stage of the interrogation
the GSS is not employing the methods alleged
by the applicant against him". For this
reason, no interim order was granted.
7. The applicant in H.C.1043/99
(Issa Ali Batat) was arrested (on 22-2-99)
and interrogated by GSS investigators. The
application, brought via the Public Committee
Against Torture in Israel, argued that physical
force was used against the applicant during
the course of the interrogation. The Court
issued an order nisi. While hearing
the application, it came to the Court’s
attention that the applicant’s interrogation
had ended and that he was being detained pending
trial; The indictment alleges his involvement
in hostile activities, the purpose of which
was to harm the "area’s" (Judea,
Samaria and the Gaza strip) security and public
safety.
The Physical
Means
8. The physical means employed
by the GSS investigators were presented before
this Court by the GSS investigators. The State’s
attorneys were prepared to present them for
us behind closed doors (in camera). The applicants’
attorneys were opposed to this proposal. Thus,
the information at the Court’s disposal
was provided by the applicants and was not
tested in each individual application. This
having been said, the State’s position,
which failed to deny the use of these interrogation
methods, and even offered these and other
explanations regarding the rationale justifying
the use of an interrogation methods or another,
provided the Court with a picture of the GSS’
interrogation practices.
The decision to utilize physical
means in a particular instance is based on
internal regulations, which requires obtaining
permission from various ranks of the GSS hierarchy.
The regulations themselves were approved by
a special Ministerial Committee on GSS interrogations.
Among other guidelines, the Committee set
forth directives pertaining to the rank authorized
to allow these interrogation practices. These
directives were not examined by this Court.
Different interrogation methods are employed
depending on the suspect, both in relation
to what is required in that situation and
to the likelihood of obtaining authorization.
The GSS does not resort to every interrogation
method at its disposal in each case.
Shaking
9. A number of applicants
(H.C. 5100/94; H.C. 4054/95; H.C. 6536/95)
claimed that the shaking method was used against
them. Among the investigation methods outlined
in the GSS’ interrogation regulations,
shaking is considered the harshest. The method
is defined as the forceful shaking of the
suspect’s upper torso, back and forth,
repeatedly, in a manner which causes the neck
and head to dangle and vacillate rapidly.
According to an expert opinion submitted in
one of the applications (H.C. (motion) 5584/95
and H.C. 5100/95), the shaking method is likely
to cause serious brain damage, harm the spinal
cord, cause the suspect to lose consciousness,
vomit and urinate uncontrollably and suffer
serious headaches.
The State entered several
countering expert opinions into evidence.
It admits the use of this method by the GSS.
To its contention, there is no danger to the
life of the suspect inherent to shaking; the
risk to life as a result of shaking is rare;
there is no evidence that shaking causes fatal
damage; and medical literature has not to
date listed a case in which a person died
directly as a result of having been only shaken.
In any event, they argue, doctors are present
in all interrogation compounds, and instances
where the danger of medical damage presents
itself are investigated and researched.
All agree that in one particular
case (H.C. 4054/95) the suspect in question
expired after being shaken. According to the
State, that case constituted a rare exception.
Death was caused by an extremely rare complication
resulting in the atrophy of the neurogenic
lung. In addition, the State argues in its
response that the shaking method is only resorted
to in very particular cases, and only as a
last resort. The interrogation directives
define the appropriate circumstances for its
application and the rank responsible for authorizing
its use. The investigators were instructed
that in every case where they consider resorting
to shaking, they must probe the severity of
the danger that the interrogation is intending
to prevent; consider the urgency of uncovering
the information presumably possessed by the
suspect in question; and seek an alternative
means of preventing the danger. Finally, the
directives respecting interrogation state,
that in cases where this method is to be used,
the investigator must first provide an evaluation
of the suspect’s health and ensure that
no harm comes to him. According to the respondent,
shaking is indispensable to fighting and winning
the war on terrorism. It is not possible to
prohibit its use without seriously harming
the GSS’ ability to effectively thwart
deadly terrorist attacks. Its use in the past
has lead to the thwarting of murderous attacks.
Waiting
in the "Shabach" Position
10. This interrogation method
arose in numerous applications (H.C. 6536/95,
H.C. 5188/96, H.C. 7628/97). As per applicants’
submission, a suspect investigated under the
"Shabach" position has his hands
tied behind his back. He is seated on a small
and low chair, whose seat is tilted forward,
towards the ground. One hand is tied behind
the suspect, and placed inside the gap between
the chair’s seat and back support. His
second hand is tied behind the chair, against
its back support. The suspect’s head
is covered by an opaque sack, falling down
to his shoulders. Powerfully loud music is
played in the room. According to the affidavits
submitted, suspects are detained in this position
for a prolonged period of time, awaiting interrogation
at consecutive intervals.
The aforementioned affidavits
claim that prolonged sitting in this position
causes serious muscle pain in the arms, the
neck and headaches. The State did not deny
the use of this method before this Court.
They submit that both crucial security considerations
and the investigators’ safety require
tying up the suspect’s hands as he is
being interrogated. The head covering is intended
to prevent contact between the suspect in
question and other suspects. The powerfully
loud music is played for the same reason.
The "Frog
Crouch"
11. This interrogation method
appeared in one of the applications (H.C.
5188/96). According to the application and
the attached corresponding affidavit, the
suspect being interrogated was found in a
"frog crouch" position. This refers
to consecutive, periodical crouches on the
tips of one’s toes, each lasting for
five minute intervals. The State did not deny
the use of this method, thereby prompting
Court to issue an order nisi in the
application where this method was alleged.
Prior to hearing the application, however,
this interrogation practice ceased.
Excessive
Tightening of Handcuffs
12. In a number of applications
before this Court (H.C. 5188/96; H.C. 7563/97),
various applicants have complained of excessive
tightening of hand or leg cuffs. To their
contention, this practice results in serious
injuries to the suspect’s hands, arms
and feet, due to the length of the interrogations.
The applicants invoke the use of particularly
small cuffs, ill fitted in relation to the
suspect’s arm or leg size. The State,
for its part, denies any use of unusually
small cuffs, arguing that those used were
both of standard issue and properly applied.
They are, nonetheless, prepared to admit that
prolonged hand or foot cuffing is likely to
cause injuries to the suspect’s hands
and feet. To the State’s contention,
however, injuries of this nature are inherent
to any lengthy interrogation.
Sleep
Deprivation
13. In a number of applications
(H.C. 6536/96; H.C. 7563/97; H.C. 7628/97)
applicants have complained of being deprived
of sleep as a result of being tied in the
"Shabach" position, being subjected
to the playing of powerfully loud music, or
intense non-stop interrogations without sufficient
rest breaks. They claim that the purpose of
depriving them of sleep is to cause them to
break from exhaustion. While the State agrees
that suspects are at times deprived of regular
sleep hours, it argues that this does not
constitute an interrogation method aimed at
causing exhaustion, but rather results from
the prolonged amount of time necessary for
conducting the interrogation.
Applicants’
Arguments
14. Before us lie a number
of applications. Different applicants raise
different arguments. In principle, all the
applications raise two essential arguments: First, they submit that the GSS is
never authorized to conduct interrogations. Second, they argue that the physical
means employed by GSS investigators not only
infringe upon the human dignity of the suspect
undergoing interrogation, but in fact constitute
criminal offences. These methods, argue the
applicants, are in violation International
Law as they constitute "Torture,"
which is expressly prohibited under International
Law. Thus, the GSS investigators are not authorized
to conduct these interrogations. Furthermore,
the "necessity" defence which, according
to the State, is available to the investigators,
is not relevant to the circumstances in question.
In any event, the doctrine of "necessity"
at most constitutes an exceptional post
factum defence, exclusively confined to
criminal proceedings against investigators.
It cannot, however, by any means, provide
GSS investigators with the preemptory authorization
to conduct interrogations ab initio.
GSS investigators are not authorized to employ
any physical means, absent unequivocal authorization
from the Legislator pertaining to the use
of such methods and conforming to the requirements
of the Basic Law: Human Dignity and Liberty.
There is no purpose in engaging in a bureaucratic
set up of the regulations and authority, as
suggested by the Commission of Inquiry’s
Report, since doing so would merely regulate
the torture of human beings.
We asked the applicants’
attorneys whether the "ticking time bomb"
rationale was not sufficiently persuasive
to justify the use of physical means, for
instance, when a bomb is known to have been
placed in a public area and will undoubtedly
explode causing immeasurable human tragedy
if its location is not revealed at once. This
question elicited a variety of responses from
the various applicants before the Court. There
are those convinced that physical means are
not to be used under any circumstances; the
prohibition on such methods to their mind
is absolute, whatever the consequences may
be. On the other hand, there are others who
argue that even if it is perhaps acceptable
to employ physical means in most exceptional
"ticking time bomb" circumstances,
these methods are in practice used even in
absence of the "ticking time bomb"
conditions. The very fact that, in most cases,
the use of such means is illegal provides
sufficient justification for banning their
use altogether, even if doing so would inevitably
absorb those rare cases in which physical
coercion may have been justified. Whatever
their particular views, all applicants unanimously
highlight the distinction between the ability
to potentially escape criminal liability post
factum and the granting of permission
to use physical means for interrogation purposes ab initio.
The State’s
Arguments
15. The position of the State
is as follows: The GSS investigators are duly
authorized to interrogate those suspected
of committing crimes against Israel’s
security. This authority emanates from the
government’s general and residual (prerogative)
powers (Article 40 of the Basic Law: the Government).
Similarly, the authority to investigate is
equally bestowed upon every individual investigator
by virtue of article 2(1) of the Criminal
Procedure Statute (Testimony) and the relevant
accessory powers. With respect to the physical
means employed by the GSS, the State argues
that these do not violate International Law.
Indeed, it is submitted that these methods
cannot be qualified as "torture,"
"cruel and inhuman treatment" or
"degrading treatment," that are
strictly prohibited under International Law.
Instead, the practices of the GSS do not cause
pain and suffering, according to the State’s
position.
Moreover, the State argues
that these means are equally legal under Israel’s
internal (domestic) law. This is due to the
"necessity" defence outlined in
article 34(11) of the Penal Law (1977). Hence,
in the specific cases bearing the relevant
conditions inherent to the "necessity"
defence, GSS investigators are entitled to
use "moderate physical pressure"
as a last resort in order to prevent real
injury to human life and well being. Such
"moderate physical pressure" may
include shaking, as the "necessity"
defence provides in specific instances. Resorting
to such means is legal, and does not constitute
a criminal offence. In any case, if a specific
method is not deemed to be a criminal offence,
there is no reason not to employ it even for
interrogation purposes. As per the State’s
submission, there is no reason for prohibiting
a particular act, in specific circumstances, ab initio if it does not constitute
a crime. This is particularly true with respect
to the GSS investigators’ case, who,
according to the State, are after all responsible
for the protection of lives and public safety.
In support of their position, the State notes
that the use of physical means by GSS investigators
is most unusual and is only employed as a
last resort in very extreme cases. Moreover,
even in these rare cases, the application
of such methods is subject to the strictest
of scrutiny and supervision, as per the conditions
and restrictions set forth in the Commission
of Inquiry’s Report. This having
been said, when the exceptional conditions
requiring the use of these means are in fact
present, the above described interrogation
methods are fundamental to saving human lives
and safeguarding Israel’s security.
The Commission
of Inquiry’s Report
16. The GSS’ authority
to employ particular interrogation methods,
and the relevant law respecting these matters
were examined by the Commission of Inquiry (whose report was published, as mentioned,
in the Landau Book (1995) Volume 1
at 269). The Commission, appointed
by the government by virtue of the Commission
of Inquiry Statute (1968), considered the
GSS’ legal status [among other issues].
Following a prolonged deliberation, the Commission concluded that the GSS is authorized to investigate
those suspected of hostile terrorist acts,
even in absence of express statutory regulation
of its activities, in light of the powers
granted to it by specific legislation and
the government’s residual (prerogative)
powers, outlined in the Basic Law: the Government
(article 29 of the old statute and article
40 of the new version). In addition, the power
to investigate suspects, granted to investigators
by the Minister of Justice as per article
2(1) of the Statute of Criminal Procedure
[Testimony], equally endows the GSS with the
authority to investigate (supra, p.301
and following). Another part of the Commission
of Inquiry’s Report deals with, "the
investigator’s potential defences"
(defences available to the investigator).
With regards to this matter, the Commission concluded that in cases where the saving of
human lives necessarily requires obtaining
certain information, the investigator is entitled
to apply both psychological pressure and "a
moderate degree of physical pressure"
(supra, at 328). Thus, an investigator
who, in the face of such danger, applies that
specific degree of physical pressure, which
does not constitute abuse or torture of the
suspect, but is instead proportional to the
danger to human life, can avail himself of
the "necessity" defence, in the
face of potential criminal liability. The Commission was convinced that its conclusions
to this effect were not in conflict with International
Law, but instead reflect an approach consistent
with both the Rule of Law and the need to
effectively safeguard the security of Israel
and its citizens.
The Commission approved
the use of, " a moderate degree of physical
pressure" with various stringent conditions
including directives that were set out in
the second (and secret) part of the Report,
and for the supervision of various elements
both internal and external to the GSS. The Commission’s recommendations were
duly approved by the government.
The Applications
17. A number of applications
dealing with the application of physical force
by the GSS for interrogation purposes have
made their way to this Court throughout the
years (See, for example, H.C. 7964/95 Billbissi
v. The GSS (unpublished); H.C. 8049/96 Hamdan v. The GSS (unpublished); H.C.
3123/94 Atun v. The Head of the GSS (unpublished); H.C. 3029/95 Arquan v. The
GSS (unpublished); H.C. 5578/95 Hajazi
v. The GSS (unpublished)). An immediate
hearing was ordered in each of these cases.
In most, the State declared that the GSS does
not employ physical means. As a result, the
applicants requested to withdraw their applications.
The Court accepted these motions and informed
the applicants of their right to set forth
a complaint if physical means were or are
in fact being used against them (See H.C.
3029/95 supra.). Only a in a minority
of complaints did the State did not issue
the above mentioned notice. In other instances,
an interim order was issued. At times, the
Court noted that, "we (the Court) did
not receive any information regarding the
interrogation methods which the respondent
(generally the GSS) seeks to employ and we
did not take any position with respect to
these methods" ( See H.C. 8049/96 Hamdan
v. The GSS (unpublished). In a different
case, the Court noted that, "[T]he annulment
of the interim order does not in any way constitute
permission to employ methods that do not conform
to the law and binding directives" (In
H.C. 336/96; In H.C. 7954/95 Billbissi
v. The GSS (unpublished)).
Until now, therefore, the
Court did not actually decide the issue of
whether the GSS is permitted to employ physical
means for interrogation purposes in circumstances
outlined by the defence of "necessity".
Essentially, we did not do so due to the fact
that it was not possible for the Court to
hear the sort of arguments that would provide
a complete normative picture, in all its complexity.
At this time, by contrast, a number of applications
before us have properly laid out (both orally
and in writing) complete arguments from sides’
respective attorneys. For this we thank them.
Although the various applications
are somewhat distinct in that some are rather
general or theoretical while others are quite
specific, we have decided to deal with them,
since above all we seek to clarify (uncover)
the state of the law in this most complicated
question. To this end, we shall begin by addressing
the first issue- namely, are GSS investigators
generally authorized to conduct interrogations.
We shall then proceed to examine whether a
general power to investigate would potentially
sanction the use of physical means- including
mental suffering-the likes of which the GSS
employs. Finally, we shall probe the circumstances
under which the above mentioned methods are
immediately necessary to rescue human lives
and whether these circumstances justify endowing
GSS investigators with the authority to employ
physical interrogation methods.
The Authority
to Interrogate
18. The term "interrogation"
takes on various meanings in different contexts.
For the purposes of the applications before
the Court at present, we refer to the asking
of questions which seek to elicit a truthful
answer (subject to the limitations respecting
the privilege against self-incrimination;
See article 2 of the Criminal Procedure Statute
[Testimony ]). Generally, the investigation
of a suspect is conducted at the suspect’s
place of detention. An interrogation inevitably
infringes upon the suspect’s freedom,
even if physical means are not used. Indeed,
undergoing an interrogation infringes on both
the suspect’s dignity and his individual
privacy. In a state adhering to the Rule of
Law, interrogations are therefore not permitted
in absence of clear statutory authorization,
be it through primary legislation or secondary
legislation, the latter being explicitly rooted
in the former. This essential principle is
expressed by the Legislator in the Criminal
Procedure Statute (Powers of Enforcement-Detention
- 1996) which states as follows:
"Detentions and arrests
shall be conducted only by law or by virtue
of express statutory authorization for this
purpose" (article 1(a)).
Hence, the statute and regulations
must adhere to the requirements of the Basic
Law: Human Dignity and Liberty (see article
8 of the Basic Law). The same principle applies
to interrogations. Thus, an administrative
body, seeking to interrogate an individual-
an interrogation being defined as an exercise
seeking to elicit truthful answers , as opposed
to the mere asking of questions as in the
context of an ordinary conversation- must
point to the explicit statutory provision
which legally empowers it. This is required
by the Rule of Law (both formally and substantively).
Moreover, this is required by the principle
of administrative legality. "If an authority
(government body) cannot point to a statute
from which it derives its authority to engage
in certain acts, that act is ultra vires
(beyond its competence) and illegal.".
(See I. Zamir, Administrative Authority (1996) at 50; See also B. Bracha, Administrative
Law (Vol. 1, 1987) at 25).
19. Does a statute, authorizing
GSS investigators to carry out interrogations
(as we defined this term above) exist? A specific
instruction, dealing with GSS agents, in their
investigating capacity was not found. "The
Service’s status, its function and powers
are not in fact outlined in any statute addressing
this matter" (Commission of Inquiry’s
Report, supra, at 302). This having
been said, the GSS constitutes an integral
part of the executive branch. The fact that
the GSS forms part of the executive branch
is not in itself sufficient to invest it with
the authority to interrogate. It is true that
the government does possess residual or prerogative
powers, defined as follows:
"The Government
is authorized to perform in the name of
the State and subject to any law, all
actions which are not legally incumbent
on another authority." (Article 40,
Basic Law: The Government).
However, we are not to conclude
from this provision the authority to investigate,
for our purposes. As mentioned, the power
to investigate infringes on a person’s
individual liberty. The government’s
residual (prerogative) powers authorize it
to act whenever there is an "administrative
vacuum" (See H.C. 2918/93 The City
of Kiryat Gatt v. The State of Israel and
others, 37 (5) P.D. 832 at 843).
A so called "administrative
vacuum" of this nature does not appear
in the case at bar, as the relevant field
is entirely occupied by the principle of individual
freedom. Infringing upon this liberty therefore
requires specific directives, as insisted
upon by President Shamgar:
"There are activities
which do not fall within the government’s
powers or scope. Employing them, absent
statutory authorization, runs contrary
to our most basic normative understanding,
an understanding which emanates from our
system’s very [democratic] character.
Thus, it is respecting basic rights that
forms part of our positive law, whether
they have been spelled out in a Basic
Law or whether this has yet to be done.
Thus, the government is not endowed with
the capacity to, for example, shut down
a newspaper on the basis of an administrative
decision, absent explicit statutory authorization
to this effect, irrespective of whether
a Basic Law expressly protects freedom
of expression; An act of this sort would
undoubtedly run contrary to our basic
understanding regarding human liberty
and the [democratic] nature of our regime,
which provides that liberty may only be
infringed upon by virtue of explicit statutory
authorization...Hence, freedom of expression,
a basic right, forms an integral part
of our positive law, creates an exception
binding the executive (branch) and does
not allow it to stray from the prohibition
respecting guaranteed human liberty, absent
statutory authorization" (In H.C.
5128/94 Federman v. The Minister of
Police, 48(5) P.D. 647 at 652.).
In a similar vein, Professor
Zamir has noted:
"While allowing
the government to act, article 40 of the
Basic Law: The Government (article 29
to the old Basic Law) simultaneously subjects
it to the law. Clearly, this exception
precludes the government from acting in
a manner contrary to statutory directives.
Moreover, it prevents the government from
infringing upon individuals’ basic
rights. This is of course all the more
true respecting specific rights protected
explicitly by the Basic Laws Human Dignity
and Liberty and Freedom of Occupation.
Notwithstanding, this is also the case
for human rights not specifically enumerated
in the Basic Laws. For instance, article
29 (now article 40) does not in any way
authorize the government to limit freedom
of expression... Indeed, article 29 "(now
40) merely endows the administrative authority
with general executive powers that cannot
serve to directly infringe upon human
rights, unless there is explicit or implicit
statutory authorization for doing so"
(I. Zamir, Administrative Authority (vol. 1, 1996) at 337).
This is the law relevant to the case at
bar. An individual’s liberty is not
to be the object of an interrogation- this
is a basic liberty under our constitutional
regime. There are to be no infringements
on this liberty absent statutory provisions
which successfully pass constitutional muster.
The government’s general administrative
powers fail to fulfill these requirements.
Indeed, when the Legislator sought to endow
the GSS with the power to infringe upon
a person’s individual liberty, he proceeded
to legislate specific provisions accordingly.
Thus, for instance, it is stipulated that
the head of a security service, under special
circumstances, is authorized to allow for
the secret monitoring of telephone conversations
(See article 5 of the Secret Interception
of Communication Statute-1979; Compare article
19(3)(4) of the Protection of Privacy Statute-1981).
This requires that the following question
be asked: Does there exist a special statutory
instruction endowing GSS investigators with
interrogating powers?
20. A specific statutory
provision authorizing GSS investigators to
conduct interrogations does not exist. While
it is true that various interrogation directives,
some with ministerial approval, followed the Commission of Inquiry’s Report,
these do not satisfy the requirement that
the authority flow directly from statute or
from explicit statutory authorization. The
directives set out following the Inquiry
Commission’s Report merely constitute
internal regulations. Addressing these directives,
Justice Levin opined:
"Clearly, these directives are not to be understood
as being tantamount to a "statute", as defined in article
8 of the Basic Law: Human Dignity. They are to therefore be struck
down if they are found not to conform to it" (H.C. 2581/91 Salhat v. The State of Israel, 47(4) P.D. 837, at 845).
From where then, do the GSS investigators derive
their interrogation powers? The answer is found in article 2(1)
of the Criminal Procedure Statute [Testimony] which provides (in
its 1944 version, as amended):
"A police officer, of or above the rank
of inspector, or any other officer or class of officers generally
or specially authorized in writing by the Chief Secretary to the
Government, to hold enquiries into the commission of offences,
may examine orally any person supposed to be acquainted with the
facts and circumstances of any offence in respect whereof such
officer or police or other authorized officer as aforesaid is
enquiring, and may reduce into writing any statement by a person
so examined."
It is by virtue of the above provision that the Minister of Justice
particularly authorized the GSS investigators to conduct interrogations
regarding the commission of hostile terrorist activities. It has
been brought to the Court’s attention that in the authorizing
decree, the Minister of Justice took care to list the names of those
GSS investigators who were authorized to conduct secret interrogations
with respect to crimes committed under the Penal Law-1977, the Prevention
of Terrorism Statute-1948, the (Emergency) Defence Regulations-1945,
The Prevention of Infiltration Statute (Crimes and Judging)-1954,
and crimes which are to be investigated as per the Emergency Defence
Regulations (Judea, Samaria and the Gaza strip- Judging in Crimes
and Judicial Assistance-1967). It appears to us - and we have heard
no arguments to the contrary- that the question of the GSS’
authority to conduct interrogations can thus be resolved. By virtue
of this authorization, GSS investigators are tantamount to police
officers in the eyes of the law. If this solution is appropriate,
is there not place for regulating the GSS investigators’ powers
by statute? We shall express an opinion on the matter at this time.
The Means Employed for Interrogation
Purposes
21. As we have seen, the GSS investigators are endowed
with the authority to conduct interrogations (See par. 20, supra).
What is the scope of these powers and do they encompass the use of physical
means in the course of the interrogation in order to advance it? Can
use be made of the physical means presently employed by GSS investigators
(such as shaking, the "Shabach" position, and sleep deprivation)
by virtue of the investigating powers given the GSS investigators? Let
us note that the State did not argue before us that all the means employed
by GSS investigators are permissible by virtue of the "law of interrogation"
per se. Thus, for instance, the State did not make the argument that
shaking is permitted simply because it is an "ordinary" investigator’s
method in Israel. Notwithstanding, it was argued before this Court that
some of the physical means employed by the GSS investigators are permitted
by the "law of interrogation" itself. For instance, this is
the case with respect to some of the physical means applied in the context
of waiting in the "Shabach" position: the placing of the head
covering (for preventing communication between the suspects); the playing
of powerfully loud music (to prevent the passing of information between
suspects); the tying of the suspect’s hands to a chair (for the
investigators’ protection) and the deprivation of sleep, as deriving
from the needs of the interrogation. Does the "law of interrogation"
sanction the use of physical means, the like used in GSS interrogations?
22. An interrogation, by its very nature, places the
suspect in a difficult position. "The criminal’s interrogation,"
wrote Justice Vitkon over twenty years ago, "is not a negotiation
process between two open and fair vendors, conducting their business
on the basis of maximum mutual trust" (Cr. A 216/74 Cohen v
The State of Israel) 29(1) P.D. 340 at 352). An interrogation is
a "competition of minds", in which the investigator attempts
to penetrate the suspect’s thoughts and elicit from him the information
the investigator seeks to obtain. Quite accurately, it was noted that:
"Any interrogation, be it the fairest and
most reasonable of all, inevitably places the suspect in embarrassing
situations, burdens him, intrudes his conscience, penetrates the
deepest crevices of his soul, while creating serious emotional pressure".
(Y. Kedmi, On Evidence, Part A, 1991 at 25).
Indeed, the authority to conduct interrogations,
like any administrative power, is designed for a specific purpose,
which constitutes its foundation, and must be in conformity with
the basic principles of the [democratic] regime. In crystallizing
the interrogation rules, two values or interests clash. On the
one hand, lies the desire to uncover the truth, thereby fulfilling
the public interest in exposing crime and preventing it. On the
other hand, is the wish to protect the dignity and liberty of
the individual being interrogated. This having been said, these
interests and values are not absolute. A democratic, freedom-loving
society does not accept that investigators use any means for the
purpose of uncovering the truth. " The interrogation practices
of the police in a given regime," noted Justice Landau, "are
indicative of a regime’s very character" (Cr. A. 264/65 Artzi v. The Government’s Legal Advisor, 20(1) P.D.
225 at 232). At times, the price of truth is so high that a democratic
society is not prepared to pay it (See Barak, On Law, Judging
and Truth, 27 Mishpatim (1997) 11 at 13). To the same
extent however, a democratic society, desirous of liberty seeks
to fight crime and to that end is prepared to accept that an interrogation
may infringe upon the human dignity and liberty of a suspect provided
it is done for a proper purpose and that the harm does not exceed
that which is necessary. Concerning the collision of values, with
respect to the use of evidence obtained in a violent police interrogation, Justice H. Cohen opined as follows:
" On the one hand, it is our duty to ensure
that human dignity be protected; that it not be harmed at the
hands of those who abuse it, and to do all that we can to restrain
police investigators from fulfilling the object of their interrogation
through prohibited and criminal means; On the other hand, it is
(also) our duty to fight the increasingly growing crime rate which
destroys the positive aspects of our country, and to prevent the
disruption of public peace to the caprices of violent criminals
that were beaten by police investigators" (Cr. A. 183/78 Abu Midjim v. The State of Israel, 34(4) P.D. 533 at 546).
Our concern, therefore, lies in the clash of values
and the balancing of conflicting values. The balancing process results
in the rules for a ‘reasonable interrogation’ (See Bein, The
Police Investigation- Is There Room for Codification of the ‘Laws
of the Hunt’, 12 Iyunei Mishpat (1987) 129). These
rules are based, on the one hand, on preserving the "human
image" of the suspect (See Cr. A. 115/82 Mouadi v. The State
of Israel 35 (1) P.D. 197 at 222-4) and on preserving the "purity
of arms" used during the interrogation ( Cr. A. 183/78, supra, ibid.). On the other hand, these rules take into consideration
the need to fight the phenomenon of criminality in an effective manner
generally, and terrorist attacks specifically. These rules reflect
"a degree of reasonableness, straight thinking (right mindedness)
and fairness" (Kedmi, supra, at 25). The rules pertaining
to investigations are important to a democratic state. They reflect
its character. An illegal investigation harms the suspect’s human
dignity. It equally harms society’s fabric.
23. It is not necessary for us to engage in an in-depth
inquiry into the "law of interrogation" for the purposes of
the applications before us. These vary from one matter to the next.
For instance, the law of interrogation, as it appears in the context
of an investigator’s potential criminal liability, as opposed to
the purpose of admitting evidence obtained by questionable means. Here,
by contrast, we deal with the "law of interrogation" as a
power activated by an administrative authority ( See Bein supra.).
The "law of interrogation" by its very nature, is intrinsically
linked to the circumstances of each case. This having been said, a number
of general principles are nonetheless worth noting:
First, a reasonable investigation is necessarily
one free of torture, free of cruel, inhuman treatment of the subject
and free of any degrading handling whatsoever. There is a prohibition
on the use of "brutal or inhuman means" in the course of an
investigation (F.H. 3081/91 Kozli v. The State of Israel, 35(4)
P.D. 441 at 446). Human dignity also includes the dignity of the suspect
being interrogated. (Compare H.C. 355/59 Catlan v. Prison Security
Services, 34(3) P.D. 293 at 298 and C.A.4463/94 Golan v. Prison
Security Services, 50(4) P.D. 136). This conclusion is in perfect
accord with (various) International Law treaties -to which Israel is
a signatory -which prohibit the use of torture, "cruel, inhuman
treatment" and "degrading treatment" (See M. Evans and
R. Morgan, Preventing Torture (1998) at 61; N.S. Rodley, The
Treatment of Prisoners under International Law (1987) at 63). These
prohibitions are "absolute". There are no exceptions to them
and there is no room for balancing. Indeed, violence directed at a suspect’s
body or spirit does not constitute a reasonable investigation practice.
The use of violence during investigations can potentially lead to the
investigator being held criminally liable. (See, for example, article
277 of the Penal Law: Pressure on a Public Servant; supra at
130, 134; Cr. A. 64/86 Ashash v. The State of Israel (unpublished)). Second, a reasonable investigation is likely to cause discomfort;
It may result in insufficient sleep; The conditions under which it is
conducted risk being unpleasant. Indeed, it is possible to conduct an
effective investigation without resorting to violence. Within the confines
of the law, it is permitted to resort to various machinations and specific
sophisticated activities which serve investigators today (both for Police
and GSS); Similar investigations- accepted in the most progressive of
societies- can be effective in achieve their goals. In the end result,
the legality of an investigation is deduced from the propriety of its
purpose and from its methods. Thus, for instance, sleep deprivation
for a prolonged period, or sleep deprivation at night when this is not
necessary to the investigation time wise may be deemed a use of an investigation
method which surpasses the least restrictive means.
From the General to the Particular
24. We shall now turn from the general to the particular.
Plainly put, shaking is a prohibited investigation method. It harms
the suspect’s body. It violates his dignity. It is a violent method
which does not form part of a legal investigation. It surpasses that
which is necessary. Even the State did not argue that shaking is an
"ordinary" investigation method which every investigator (in
the GSS or police) is permitted to employ. The submission before us
was that the justification for shaking is found in the "necessity"
defence. That argument shall be dealt with below. In any event, there
is no doubt that shaking is not to be resorted to in cases outside the
bounds of "necessity" or as part of an "ordinary"
investigation.
25. It was argued before the Court that one of the
investigation methods employed consists of the suspect crouching on
the tips of his toes for five minute intervals. The State did not deny
this practice. This is a prohibited investigation method. It does not
serve any purpose inherent to an investigation. It is degrading and
infringes upon an individual’s human dignity.
26. The "Shabach" method is composed of a
number of cumulative components: the cuffing of the suspect, seating
him on a low chair, covering his head with an opaque sack (head covering)
and playing powerfully loud music in the area. Are any of the above
acts encompassed by the general power to investigate? Our point of departure
is that there are actions which are inherent to the investigation power
(Compare C.A. 4463/94, supra., ibid.). Therefore, we accept
that the suspect’s cuffing, for the purpose of preserving the investigators’
safety, is an action included in the general power to investigate (
Compare H.C. 8124/96 Mubarak v. The GSS (unpublished)). Provided
the suspect is cuffed for this purpose, it is within the investigator’s
authority to cuff him. The State’s position is that the suspects
are indeed cuffed with the intention of ensuring the investigators’
safety or to prevent fleeing from legal custody. Even the applicants
agree that it is permissible to cuff a suspect in similar circumstances
and that cuffing constitutes an integral part of an interrogation. Notwithstanding,
the cuffing associated with the "Shabach" position is unlike
routine cuffing. The suspect is cuffed with his hands tied behind his
back. One hand is placed inside the gap between the chair’s seat
and back support, while the other is tied behind him, against the chair’s
back support. This is a distorted and unnatural position. The investigators’
safety does not require it. Therefore, there is no relevant justification
for handcuffing the suspect’s hands with particularly small handcuffs,
if this is in fact the practice. The use of these methods is prohibited.
As was noted, "Cuffing causing pain is prohibited" (See the Mubarak affair supra.). Moreover, there are other ways
of preventing the suspect from fleeing from legal custody which do not
involve causing the suspect pain and suffering.
27. This is the law with respect to the method involving
seating the suspect in question in the "Shabach" position.
We accept that seating a man is inherent to the investigation. This
is not the case when the chair upon which he is seated is a very low
one, tilted forward facing the ground, and when he is sitting in this
position for long hours. This sort of seating is not encompassed by
the general power to interrogate. Even if we suppose that the seating
of the suspect on a chair lower than that of his investigator can potentially
serve a legitimate investigation objective (for instance, to establish
the "rules of the game" in the contest of wills between the
parties, or to emphasize the investigator’s superiority over the
suspect), there is no inherent investigative need for seating the suspect
on a chair so low and tilted forward towards the ground, in a manner
that causes him real pain and suffering. Clearly, the general power
to conduct interrogations does not authorize seating a suspect on a
forward tilting chair, in a manner that applies pressure and causes
pain to his back, all the more so when his hands are tied behind the
chair, in the manner described. All these methods do not fall within
the sphere of a "fair" interrogation. They are not reasonable.
They impinge upon the suspect’s dignity, his bodily integrity and
his basic rights in an excessive manner (or beyond what is necessary).
They are not to be deemed as included within the general power to conduct
interrogations.
28. We accept that there are interrogation related
considerations concerned with preventing contact between the suspect
under interrogation and other suspects and his investigators, which
require means capable of preventing the said contact. The need to prevent
contact may, for instance, flow from the need to safeguard the investigators’
security, or that of the suspects and witnesses. It can also be part
of the "mind game" which pins the information possessed by
the suspect, against that found in the hands of his investigators. For
this purpose, the power to interrogate- in principle and according to
the circumstances of each particular case- includes preventing eye contact
with a given person or place. In the case at bar, this was the explanation
provided by the State for covering the suspect’s head with an opaque
sack, while he is seated in the "Shabach" position. From what
was stated in the declarations before us, the suspect’s head is
covered with an opaque sack throughout his "wait" in the "Shabach"
position. It was argued that the sack (head covering) is entirely opaque,
causing the suspect to suffocate. The edges of the sack are long, reaching
the suspect’s shoulders. All these methods are not inherent to
an interrogation. They do not confirm the State’s position, arguing
that they are meant to prevent eye contact between the suspect being
interrogated and other suspects. Indeed, even if such contact should
be prevented, what is the purpose of causing the suspect to suffocate?
Employing this method is not connected to the purpose of preventing
the said contact and is consequently forbidden. Moreover, the statements
clearly reveal that the suspect’s head remains covered for several
hours, throughout his wait. For these purposes, less harmful means must
be employed, such as letting the suspect wait in a detention cell. Doing
so will eliminate any need to cover the suspect’s eyes. In the
alternative, the suspect’s eyes may be covered in a manner that
does not cause him physical suffering. For it appears that at present,
the suspect’s head covering - which covers his entire head, rather
than eyes alone,- for a prolonged period of time, with no essential
link to the goal of preventing contact between the suspects under investigation,
is not part of a fair interrogation. It harms the suspect and his (human)
image. It degrades him. It causes him to lose sight of time and place.
It suffocates him. All these things are not included in the general
authority to investigate. In the cases before us, the State declared
that it will make an effort to find an "ventilated" sack.
This is not sufficient. The covering of the head in the circumstances
described, as distinguished from the covering of the eyes, is outside
the scope of authority and is prohibited.
29. Cutting off the suspect from his surroundings can
also include preventing him from listening to what is going on around
him. We are prepared to assume that the authority to investigate an
individual equally encompasses precluding him from hearing other suspects
under investigation or voices and sounds that, if heard by the suspect,
risk impeding the interrogation’s success. Whether the means employed
fall within the scope of a fair and reasonable interrogation warrant
examination at this time. In the case at bar, the detainee is found
in the "Shabach" position while listening to the consecutive
playing of powerfully loud music. Do these methods fall within the scope
or the general authority to conduct interrogations? Here too, the answer
is in the negative. Being exposed to powerfully loud music for a long
period of time causes the suspect suffering. Furthermore, the suspect
is tied (in place) in an uncomfortable position with his head covered
(all the while). The use of the "Shabach" method is prohibited.
It does not fall within the scope of the authority to conduct a fair
and effective interrogation. Powerfully loud music is a prohibited means
for use in the context described before us.
30. To the above, we must add that the "Shabach"
position includes all the outlined methods employed simultaneously.
Their combination, in and of itself gives rise to particular pain and
suffering. This is a harmful method, particularly when it is employed
for a prolonged period of time. For these reasons, this method does
not form part of the powers of interrogation. It is an unacceptable
method. "The duty to safeguard the detainee's dignity includes
his right not to be degraded and not to be submitted to sub-human conditions
in the course of his detention, of the sort likely to harm his health
and potentially his dignity" (In Cr. A. 7223/95 The State of
Israel v. Rotenstein (not yet published)).
A similar- though not identical- combination of interrogation
methods were discussed in the case of Ireland v. United Kingdom (1978) 2 EHRR 25. In that case, the Court probed five interrogation
methods used by England for the purpose of investigating detainees suspected
of terrorist activities in Northern Ireland. The methods were as follows:
protracted standing against the wall on the tip of one's toes; covering
of the suspect's head throughout the detention (except during the actual
interrogation); exposing the suspect to powerfully loud noise for a
prolonged period and deprivation of sleep, food and drink. The Court
held that these methods did not constitute "torture". However,
since they treated the suspect in an "inhuman and degrading"
manner, they were nonetheless prohibited.
31. The interrogation of a person is likely to be lengthy,
due to the suspect's failure to cooperate or due to the information's
complexity or in light of the imperative need to obtain information
urgently and immediately (For instance, see The Mubarak affair, supra; H.C. 5318/95 Hajazi v. GSS (unpublished)). Indeed,
a person undergoing interrogation cannot sleep as does one who is not
being interrogated. The suspect, subject to the investigators' questions
for a prolonged period of time, is at times exhausted. This is often
the inevitable result of an interrogation, or one of its side effects.
This is part of the "discomfort" inherent to an interrogation.
This being the case, depriving the suspect of sleep is, in our opinion,
included in the general authority of the investigator (Compare: H.C.
3429/94 Shbana v. GSS (unpublished)). So noted Justice Shamgar,
in a similar instance:
"The interrogation of crimes and in particular,
murder or other serious crimes- cannot be accomplished within the
confines of an ordinary public servant's work day...The investigation
of crime is essentially mental resistance...For this reason, the
interrogation is often carried out at consecutive intervals. This,
as noted, causes the investigation to drag on ...and requires diligent
insistence on its momentum and consecutiveness." (Cr. A. 485/76 Ben Loulou v. The State of Israel (unpublished)).
The above described situation is different from those in which
sleep deprivation shifts from being a "side effect" inherent
to the interrogation, to an end in itself. If the suspect is intentionally
deprived of sleep for a prolonged period of time, for the purpose
of tiring him out or "breaking" him- it shall not fall
within the scope of a fair and reasonable investigation. Such means
harm the rights and dignity of the suspect in a manner surpassing
that which is required.
32. All that was stated regarding the exceptions pertinent
to an interrogation, flowing from the requirement that an interrogation
be fair and reasonable, is the accepted law with respect to a regular
police interrogation. The power to interrogate given to the investigator
GSS investigator by law is the same interrogation powers the law bestows
upon the ordinary police force investigator. It appears that the restrictions
applicable to the police investigations are equally applicable to GSS
investigations. There is no statutory instruction endowing a GSS investigator
with special interrogating powers that are either different or more
serious than those given the police investigator. From this we conclude
that a GSS investigator, whose duty is to conduct the interrogation
according to the law, is subject to the same restrictions applicable
to a police interrogation.
Physical Means and the "Necessity"
Defence
33. We have arrived at the conclusion that the GSS
personnel who have received permission to conduct interrogations (as
per the Criminal Procedure Statute [Testimony]) are authorized to do
so. This authority-like that of the police investigator- does not include
most of the physical means of interrogation which are the subject of
the application before us. Can the authority to employ these interrogation
methods be anchored in a legal source beyond the authority to conduct
an interrogation? This question was answered by the State’s attorneys
in the affirmative. As noted, an explicit authorization permitting GSS
to employ physical means is not to be found in our law. An authorization
of this nature can, in the State’s opinion, be obtained in specific
cases by virtue of the criminal law defense of "necessity",
prescribed in the Penal Law. The language of the statute is as follows:
(Article 34 (1)):
"A person will not bear criminal liability
for committing any act immediately necessary for the purpose
of saving the life, liberty, body or property, of either himself
or his fellow person, from substantial danger of serious harm,
imminent from the particular state of things [circumstances],
at the requisite timing, and absent alternative means for avoiding
the harm."
The State’s position is that by virtue of this
"defence" to criminal liability, GSS investigators are also
authorized to apply physical means, such as shaking, in the appropriate
circumstances, in order to prevent serious harm to human life or body,
in the absence of other alternatives. The State maintains that an act
committed under conditions of "necessity" does not constitute
a crime. Instead, it is deemed an act worth committing in such circumstances
in order to prevent serious harm to a human life or body. We are therefore
speaking of a deed that society has an interest in encouraging, as it
is deemed proper in the circumstances. It is choosing the lesser evil.
Not only is it legitimately permitted to engage in the fighting of terrorism,
it is our moral duty to employ the necessary means for this purpose.
This duty is particularly incumbent on the state authorities- and for
our purposes, on the GSS investigators- who carry the burden of safeguarding
the public peace. As this is the case, there is no obstacle preventing
the investigators’ superiors from instructing and guiding them
with regard to when the conditions of the "necessity" defence
are fulfilled and the proper boundaries in those circumstances. From
this flows the legality of the directives with respect to the use of
physical means in GSS interrogations. In the course of their argument,
the State’s attorneys submitted the "ticking time bomb"
argument. A given suspect is arrested by the GSS. He holds information
respecting the location of a bomb that was set and will imminently explode.
There is no way to diffuse the bomb without this information. If the
information is obtained, however, the bomb my be diffused. If the bomb
is not diffused, scores will be killed and maimed. Is a GSS investigator
authorized to employ physical means in order to elicit information regarding
the location of the bomb in such instances? The State’s attorneys
answers in the affirmative. The use of physical means shall not constitute
a criminal offence, and their use is sanctioned, to the State’s
contention, by virtue of the "necessity" defence.
34. We are prepared to assume that- although this matter
is open to debate - (See A. Dershowitz, Is it Necessary to Apply
‘Physical Pressure’ to Terrorists- And to Lie About It?, [1989] 23 Israel L. Rev. 193; Bernsmann, Private Self-Defence and Necessity
in German Penal Law and in the Penal Law Proposa- Some Remarks,
[1998] 30 Israel L. Rev. 171, 208-210) - the "necessity" defence
is open to all, particularly an investigator, acting in an organizational
capacity of the State in interrogations of that nature. Likewise, we
are prepared to accept - although this matter is equally contentious-
(See M. Kremnitzer, The Landau Commission Report- Was the Security
Service Subordinated to the Law or the Law to the Needs of the Security
Service?, [1989] 23 Israel L. Rev. 216, 244-247) - that the "necessity"
exception is likely to arise in instances of "ticking time bombs",
and that the immediate need ("necessary in an immediate manner"
for the preservation of human life) refers to the imminent nature of
the act rather than that of the danger. Hence, the imminence criteria
is satisfied even if the bomb is set to explode in a few days, or perhaps
even after a few weeks, provided the danger is certain to materialize
and there is no alternative means of preventing its materialization.
In other words, there exists a concrete level of imminent danger of
the explosion’s occurrence (See Kremnitzer and Segev, The Application
of Force in the Course of GSS Interrogations- A Lesser Evil?, [1998]
4 Mishpat U’ Mimshal 667 at 707; See also Feller, Not
Actual "Necessity" but Possible "Justification";
Not "Moderate Pressure", but Either "Unlimited"
or "None at All", [1989] 23 Israel L. Rev. 201, 207).
Consequently we are prepared to presume, as was held
by the Inquiry Commission’s Report, that if a GSS investigator-
who applied physical interrogation methods for the purpose of saving
human life-is criminally indicted, the "necessity" defence
is likely to be open to him in the appropriate circumstances (See Cr.
A. 532/91 Anonymous v. The State of Israel (unpublished)). A
long list of arguments, from both the fields of Ethics and Political
Science, may be raised for and against the use of the "necessity"
defence, (See Kremnitzer and Segev, supra, at p.696; M.S. Moor, Torture and the Balance of Evils, [1989] 23 Israel L. Rev. 280;
L. Shelf, The Lesser Evil and the Lesser Good- On the Landau Commission’s
Report, Terrorism and Torture, [1990] 1 Plilim 185; W.L.
& P.E. Twining, Bentham on Torture, [1973] 24 Nothern Ireland
Legal Quarterly 305; D. Stetman, The Question of Absolute Morality
Regarding the Prohibition on Torture, [1997] 4 Mishpat U’
Mimshal 161 at 175; A. Zuckerman, Coersion and the Judicial Ascertainment
of Truth, [1989] 23 Israel L. Rev. 357. This matter, however,
has already been decided under Israeli law. Israel’s Penal Law
recognizes the "necessity" defence.
35. Indeed, we are prepared to accept that in the appropriate
circumstances, GSS investigators may avail themselves of the "necessity"
defence, if criminally indicted. This however, is not the issue before
this Court. We are not dealing with the potential criminal liability
of a GSS investigator who employed physical interrogation methods in
circumstances of "necessity." Moreover, we are not addressing
the issue of admissibility or probative value of evidence obtained as
a result of a GSS investigator’s application of physical means
against a suspect. We are dealing with a different question. The question
before us is whether it is possible to infer the authority to, in advance,
establish permanent directives setting out the physical interrogation
means that may be used under conditions of "necessity". Moreover,
we are asking whether the "necessity" defence constitutes
a basis for the GSS investigator’s authority to investigate, in
the performance of his duty. According to the State, it is possible
to imply from the "necessity" defence, available (post
factum) to an investigator indicted of a criminal offence, an advance
legal authorization endowing the investigator with the capacity to use
physical interrogation methods. Is this position correct?
36. In the Court’s opinion, a general authority
to establish directives respecting the use of physical means during
the course of a GSS interrogation cannot be implied from the "necessity"
defence. The "necessity" defence does not constitute a source
of authority, allowing GSS investigators to make use physical means
during the course of interrogations. The reasoning underlying our position
is anchored in the nature of the "necessity" defence. This
defence deals with deciding those cases involving an individual reacting
to a given set of facts; It is an ad hoc endeavour, in reaction to a
event. It is the result of an improvisation given the unpredictable
character of the events (See Feller, ibid. at 209). Thus, the
very nature of the defence does not allow it to serve as the source
of a general administrative power. The administrative power is based
on establishing general, forward looking criteria, as noted by Professor
Enker:
"Necessity is an after-the-fact judgment based
on a narrow set of considerations in which we are concerned with
the immediate consequences, not far-reaching and long-range consequences,
on the basis of a clearly established order of priorities of both
means and ultimate values...The defence of Necessity does not define
a code of primary normative behaviour. Necessity is certainly not
a basis for establishing a broad detailed code of behaviour such
as how one should go about conducting intelligence interrogations
in security matters, when one may or may not use force, how much
force may be used and the like (Enker, "The Use of Physical
Force in Interrogations and the Necessity Defense," in Israel
and International Human Rights Law: The Issue of Torture 61,62
(1995)).
In a similar vein, Kremnitzer and Segev note:
"[t]he basic rationale underlying the necessity
defence is the absence of the possibility to establish accurate
rules of behaviour in advance, appropriate in concrete emergency
situations, whose circumstances are varied and unexpected. From
this it follows, that the necessity defence is not well suited for
regulation a general situation, the circumstances of which are known
and (often) repeat themselves. In similar cases, there is no reason
for not setting the rules of behaviour in advance, in order that
their content be determined in a thought out and well-planned manner,
in advance, permitting them to apply in a uniform manner to all"
(supra, at 705).
Moreover, the "necessity" defence has the
effect of allowing one who acts under the circumstances of "necessity"
to escape criminal liability. The "necessity" defence does
not possess any additional normative value. In addition, it does not
authorize the use of physical means for the purposes of allowing investigators
to execute their duties in circumstances of necessity. The very fact
that a particular act does not constitute a criminal act (due to the
"necessity" defence) does not in itself authorize the administration
to carry out this deed, and in doing so infringe upon human rights.
The Rule of Law (both as a formal and substantive principle) requires
that an infringement on a human right be prescribed by statute, authorizing
the administration to this effect. The lifting of criminal responsibility
does not imply authorization to infringe upon a human right. It shall
be noted that the Commission of Inquiry did not hold that the
"necessity" defence is the source of authority for employing
physical means by GSS investigators during the course of their interrogations.
All that the Commission of Inquiry determined is that if an investigator
finds himself in a situation of "necessity", constraining
him to choose the "lesser evil" - harming the suspect for
the purpose of saving human lives - the "necessity" defence
shall be available to him. Indeed, the Commission of Inquiry noted that, "the law itself must ensure a proper framework governing
the [security] service’s actions with respect to the interrogation
of hostile terrorist activities and the related problems particular
to it" (ibid. at 328).
37. In other words, general directives governing the
use of physical means during interrogations must be rooted in an authorization
prescribed by law and not from defences to criminal liability. The principle
of "necessity" cannot serve as a basis of authority (See Kremnitzer, ibid. at 236). If the State wishes to enable GSS investigators
to utilize physical means in interrogations, they must seek the enactment
of legislation for this purpose. This authorization would also free
the investigator applying the physical means from criminal liability.
This release would flow not from the "necessity" defence but
from the "justification" defense which states:
"A person shall not bear criminal liability
for an act committed in one of the following cases:
(1) He was obliged or authorized by law to commit
it. "
(Article 34(13) of the Penal Law) The defence to criminal liability
by virtue of the "justification" is rooted in a area
outside of the criminal law. This "external" law serves
as a defence to criminal liability. This defence does not rest
upon the "necessity", which is "internal"
to the Penal Law itself. Thus, for instance, where the question
of when an officer is authorized to apply deadly force in the
course of detention arises, the authority is found in a provision
of the Law of Detention, external to the Penal Law. If a man is
killed as a result of the application of force, the provision
is likely to give rise to a defence, by virtue of the "Justification"
(See Cr. A. 486/88, Ankonina v. The Chief Army Prosecutor 34(2) P.D. 353). The "necessity" defence cannot constitute
the basis for the determination of rules respecting the needs
of an interrogation. It cannot constitute a source of authority
on which the individual investigator can rely on for the purpose
of applying physical means in an investigation that he is conducting.
The power to enact rules and to act according to them requires
legislative authorization, by legislation whose object is the
power to conduct interrogations. Within the boundaries of this
legislation, the Legislator, if he so desires, may express his
views on the social, ethical and political problems, connected
to authorizing the use of physical means in an interrogation.
These considerations did not, from the nature of things, arise
before the Legislature at the time when the "necessity"
defence was enacted (See Kremnitzer, supra, at 239-40).
The "necessity" defence is not the appropriate place
for laying out these considerations (See Enker, supra,
at 72). Endowing GSS investigators with the authority to apply
physical force during the interrogation of suspects suspected
of involvement in hostile terrorist activities, thereby harming
the latters’ dignity and liberty, raise basic questions of
law and society, of ethics and policy, and of the Rule of Law
and security. These questions and the corresponding answers must
be determined by the Legislative branch. This is required by the
principle of the Separation of Powers and the Rule of Law, under
our very understanding of democracy (See H.C. 3267/97 Rubinstein
v. Minister of Defence (has yet to be published)).
38. Our conclusion is therefore the following: According
to the existing state of the law, neither the government nor the heads
of security services possess the authority to establish directives and
bestow authorization regarding the use of liberty infringing physical
means during the interrogation of suspects suspected of hostile terrorist
activities, beyond the general directives which can be inferred from
the very concept of an interrogation. Similarly, the individual GSS
investigator-like any police officer- does not possess the authority
to employ physical means which infringe upon a suspect’s liberty
during the interrogation, unless these means are inherently accessory
to the very essence of an interrogation and are both fair and reasonable.
An investigator who insists on employing these methods,
or does so routinely, is exceeding his authority. His responsibility
shall be fixed according to law. His potential criminal liability shall
be examined in the context of the "necessity" defence, and
according to our assumptions (See paragraph 35 supra.), the investigator
may find refuge under the "necessity" defence’s wings
(so to speak), provided this defence’s conditions are met by the
circumstances of the case. Just as the existence of the "necessity"
defence does not bestow authority, so too the lack of authority does
not negate the applicability of the necessity defense or that of other
defences from criminal liability. The Attorney General can instruct
himself regarding the circumstances in which investigators shall not
stand trial, if they claim to have acted from a feeling of "necessity".
Clearly, a legal statutory provision is necessary for the purpose of
authorizing the government to instruct in the use of physical means
during the course of an interrogation, beyond what is permitted by the
ordinary "law of investigation", and in order to provide the
individual GSS investigator with the authority to employ these methods.
The "necessity" defence cannot serve as a basis for this authority.
A Final Word
39. This decision opens with a description of the difficult
reality in which Israel finds herself security wise. We shall conclude
this judgment by re-addressing that harsh reality. We are aware that
this decision does not ease dealing with that reality. This is the destiny
of democracy, as not all means are acceptable to it, and not all practices
employed by its enemies are open before it. Although a democracy must
often fight with one hand tied behind its back, it nonetheless has the
upper hand. Preserving the Rule of Law and recognition of an individual’s
liberty constitutes an important component in its understanding of security.
At the end of the day, they strengthen its spirit and its strength and
allow it to overcome its difficulties. This having been said, there
are those who argue that Israel’s security problems are too numerous,
thereby requiring the authorization to use physical means. If it will
nonetheless be decided that it is appropriate for Israel, in light of
its security difficulties to sanction physical means in interrogations
(and the scope of these means which deviate from the ordinary investigation
rules), this is an issue that must be decided by the legislative branch
which represents the people. We do not take any stand on this matter
at this time. It is there that various considerations must be weighed.
The pointed debate must occur there. It is there that the required legislation
may be passed, provided, of course, that a law infringing upon a suspect’s
liberty "befitting the values of the State of Israel," is
enacted for a proper purpose, and to an extent no greater than is required.
(Article 8 to the Basic Law: Human Dignity and Liberty).
40. Deciding these applications weighed heavy on this
Court. True, from the legal perspective, the road before us is smooth.
We are, however, part of Israeli society. Its problems are known to
us and we live its history. We are not isolated in an ivory tower. We
live the life of this country. We are aware of the harsh reality of
terrorism in which we are, at times, immersed. Our apprehension is that
this decision will hamper the ability to properly deal with terrorists
and terrorism, disturbs us. We are, however, judges. Our bretheren require
us to act according to the law. This is equally the standard that we
set for ourselves. When we sit to judge, we are being judged. Therefore,
we must act according to our purest conscience when we decide the law.
The words of the Deputy President of the Supreme Court, Justice Landau,
speak well to our purposes:
"We possess proper sources upon which to construct
our judgments and have no need, and while judging, are forbidden
from, involving our personal views as citizens of this country in
our decisions. Still, great is the fear that the Court shall be
perceived as though it had abandoned its proper place and descended
to the midst of public debate, and that its decision making will
be obstructed by one side of the population’s uproar and by
the other side’s absolute and emotional rejection. In that
sense, I see myself here as someone whose duty is to decide according
to the law in all cases legally brought before the Court. I am strictly
bound by this duty. As I am well aware in advance that the public
at large will not pay attention to the legal reasoning, but to the
end result alone. And that the Court’s proper status, as an
institution above partisan debates, risks being harmed. What can
we do, as this is our function and role as judges." (H.C. 390/79 Dawikat v. The State of Israel, 34(1) P.D. 1 at 4).
The Commission of Inquiry pointed to the "difficult
dilemma between the imperative need to safeguard the State of Israel’s
very existence and the lives of its citizens, and preserving its character-
that of a country subject to the Rule of Law and holding basic moral
values" (supra, p.326). The Commission rejected an
approach suggesting that the actions of security services in the context
of fighting terrorism, shall take place in the recesses of the law.
The Commission equally rejected the "ways of the hypocrites,
who remind us of their adherence to the Rule of Law, while ignoring
(being willfully blind) to what is being done in practice" (ibid.
at 327). The Commission elected to follow a third route, "the
way of Truth and the Rule of Law" (Ibid., at p.328). In
so doing, the Commission of Inquiry outlined the dilemma faced
by Israel in a manner both transparent and open to inspection by Israeli
society.
Consequently, it is decided that the order nisi be made absolute, as we declare that the GSS does not have
the authority to "shake" a man, hold him in the "Shabach"
position (which includes the combination of various methods, as mentioned
in paragraph 30), force him into a "frog crouch" position
and deprive him of sleep in a manner other than that which is inherently
required by the interrogation. Likewise, we declare that the "necessity"
defence, found in the Penal Law, cannot serve as a basis of authority
for the use of these interrogation practices, or for the existence of
directives pertaining to GSS investigators, allowing them to employ
interrogation practices of this kind. Our decision does not negate the
possibility that the "necessity" defence be available to GSS
investigators, be within the discretion of the Attorney General, if
he decides to prosecute, or if criminal charges are brought against
them, as per the Court’s discretion.
Deputy President S. Levin:
I agree.
Justice T. Or
I agree.
Justice E. Mazza
I agree.
Justice M. Cheshin
I agree.
Justice I. Zamir
I agree.
Justice T. Strasberg-Cohen
I agree.
Justice D. Dorner
I agree.
Justice J' Kedmi
I accept the result conclusion which has been reached
by my fellow, the President, by which the use of exceptional interrogation
methods, according to the directives of the Ministerial Committee
- that relies on a collection of legal provisions suggested by the
attorneys for the State - "has no authority, and is therefore,
illegal". Similarly, I am of the opinion that the time has
arrived for this issue to be regulated by primary and explicit legislation,
that is clear and non-partial.
Notwithstanding, it is difficult for me to accept
a state of things in which, due to the absence of explicit legislation
as noted (above), the State should be helpless from a legal perspective,
in those rare emergencies that merit being defined as, "ticking
time bombs"; and that the State would not be authorized to
order the use of exceptional interrogation methods in those circumstances.
As far as I am concerned, such an authority exists in those circumstances,
deriving from the basic obligation of being a State- like all countries
of the world- to defend (protect) its existence, its well-being,
and to safeguard (the lives of) its citizens. It is clear that in
those circumstances, the State - as well as its agents - will have
the natural right of "self-defence", in the larger meaning
of the term, since terrorist organizations, that seek the soul and
the souls of its inhabitants, and carry out shocking terrorist attacks
to advance their cause (objectives).
On this background, and deriving from the intention
will to prevent a situation where the "time bomb will tick"
before our eyes and the State's hand will be shortened to help,
I suggest that the judgment be suspended from coming into force
for a period of one year. During that year, the GSS could employ
exceptional interrogative methods in those rare cases of "ticking
time bombs", on the condition that explicit authorization is
given by the Attorney General .
The suspension under these conditions, does not
infringe the ruling of the judgment, that the use of exceptional
interrogation methods - that relies on directives of the Ministerial
Committee as noted above - is illegal. This is because according
to the suggested conditions, the suspension of the judgment does
not constitute an authorization to continue acting according to
those directives; and the authorization of the Attorney General
does not legalize the performance of an illegal action according
to the judgment, but rather deals with the non-indictment (of a
violator) for the employment of exceptional interrogation methods
in those emergency circumstances defined as, "ticking bombs".
During the suspension period, the Knesset will
be given an opportunity to consider the issue (speak its words)
concerning the views of exceptional interrogation methods in security
investigations, both in general and in times of emergency. The GSS
will be given the opportunity to cope with emergency situations
until the Knesset considers the issue. Meanwhile, the GSS will also
have an opportunity to adapt itself, after a long period in which
the directives of the Ministerial Committee have governed, to the
new state of things, which expresses the development that has occurred
in Israel concerning the status and weight of human rights.
I, therefore, join in the judgment of the President
subject to my proposal regarding the suspension of the judgment
from coming into force for a period of one year, as explained above.
Decided According the President's Opinion
Given today, the 6th of September, 1999.
Sources: Israeli
Foreign Ministry